Introduction
In 2015 there was an announcement that bonus payments for government employees would be suspended for two years.[3] After the pronouncement, there was an outcry from the government employees who did not take the suspension of the bonus lightly.[4] A strike action was threatened.[5] The then-president of Zimbabwe, Robert Mugabe had to intervene and announced that there was a procedural irregularity which had led to the announcement.[6] The presidential intervention, then resulted in the payment of the bonus and resultantly pacified the government employee relations at that time.
Every year in December issues to do with the Christmas bonus, or, as it is usually referred to, the 13th cheque become topical. To several employees, an extra month’s pay represents an opportunity to get extra income to spend during the festive holidays that incorporate Christmas and New Year’s Eve. To those who receive this 13th Cheque, there is no doubt that it brings joy to them and their families.
The economic climate prevailing in Zimbabwe may not allow several companies to pay an extra month’s worth of wages as a bonus when they struggle with normal wages and salaries. This was the case in 2017 when it was reported that EMCOZ, the largest employer representative body announced that employers were not going to pay bonuses for that year.[7] The position was also not taken lightly by the employees who indicated that “any attempts to deny them the benefit will be met with various actions, including court intervention.”
What is also topical during the festive season period is that some employers might have been paying the 13th cheque religiously and may also become reluctant for one reason or another to stop paying the bonus.[8] This was the case of Rodwell Jariremombe and Others v NSSA HH 402/2018 wherein NSSA decided not to pay a bonus that it had religiously paid in the past. Such instances can result in costly and highly emotional labour disputes.
The issue of bonuses like any other pay-related issue is an emotional one and it can lead to serious labour relations challenges. As illustrated by the events that have happened in the past in our country, the payment of bonuses, if not properly handled, can result in a poor labour relations climate in employment establishments. Our sincere belief is that most of the challenges surrounding the issue of bonuses and their payment can be resolved if employers and employers are equipped with the legal knowledge that forms the legal basis for the payment of this important benefit.
The purpose of this article
The purpose of this article is to outline the several labour law principles behind the establishment and payment of bonuses to employees by their employers. The articles outline the provisions in the Labour Act that speak to the payment of bonuses in Zimbabwe. It then analyses court decisions that have provided guidance and insight on these important issues. It will be noted in this discussion that, the South African position is not far off from the Zimbabwean labour law position on the issue of bonuses. Legal practitioners, Human Resources professionals, employers and employees can borrow some legal principles from South African jurisprudence without much of a hassle. The discussion starts by outlining the statutory basis for paying bonuses in Zimbabwe.
Statutory basis for bonuses
The Labour Act (Chapter 28.01)
The Labour Act contains provisions that are scattered throughout the Act that provide employers and employees with unqualified guidance on bonuses. At least three provisions in the Labour Act refer to bonuses and the payment thereof. What is important to note is that these provisions do not compel the employer to pay a bonus and the type of bonus to pay. These provisions are discussed hereunder.
Section 12 of the Labour Act
Section 12 of the Act imposes a legal obligation on an employer to provide, in writing, details of a bonus scheme that is operated by the employer.[9] This provision is meant to prevent and preclude disputes and provide legal certainty in the payment of bonuses in the workplace. The provision also implies that it is the employer that has the discretion to come up with a bonus scheme. Once a bonus scheme is in place it must be communicated with the employee, and this must happen on engagement. The provision does not provide a limitation on what constitutes a bonus and how this can be paid to the employees. All is left to the discretion of the employer.
Section 12A of the Labour Act
Once a bonus scheme has been established and communicated in accordance with section 12(2)(h) of the Act, the employer has an obligation to indicate on the employee’s payslip the payment of such a bonus. This is in line with section 12A(5)(c) of the Labour Act.[10] Again, the provision does not indicate the nature of the bonus and how it is calculated. All is left to the party’s discretion.
Section 25A of the Labour Act
Section 25A of the Act which provides for the composition, procedure, and functions of works councils has some regulation on bonuses. The provisions place an obligation on the employer to consult with the Works Council in connection with “the criteria for merit increases or payment of discretionary bonuses”.[11] In the process of consulting the works council on bonus issues, the employer is required to get representations from members of the worker’s committee and to allow them to advance alternative proposals. The employer must also consider and respond to the representations and alternative proposals. The employer should also state why he or she does not agree with the proposals being made.[12] As much as possible the employer must attempt to reach a consensus with the employees with regard to bonuses and conditions attached to it.
The importance of section 25A of the Act, in particular the need to inform employees of the decision to implement a bonus scheme was supported by the Supreme Court in T. M. Supermarkets (Private) Limited v Itayi Nkomo & 2 Others SC 26/18. The court stated that the employer in this case had a legal duty to notify the employees about the decision to implement the bonus scheme before implementing it.[13] Its failure to consult the employees made the legality of the scheme questionable.
Different types of bonuses
A review of several cases in Zimbabwe and South Africa shows that two main types of bonuses are normally awarded to employees. There is the 13th Cheque also called the Christmas bonus and the production or the performance bonus. The two forms of bonuses are discussed below. It is worth noting that the different types of bonuses can be awarded to groups of employees and may be awarded to individuals or the entire entity.
The 13th cheque or Christmas bonus.
This is a bonus that is usually given at the end of the year. It is paid after one receives their December wages or salary and that is why it is referred to as the 13th Cheque. It is 13th in the sense that the other 12 cheques would have been received between January and December. It is given as an extra wage or salary that comes after December of every year. There is usually no condition attached to the 13th cheque. In the majority of cases, it is given to all the employees who were present throughout the year.
Production or Performance Bonus
This type of bonus is tied to specific job performance criteria and is only awarded when the employee reaches a predetermined target. It can be paid out either monthly or at the end of the year. This type of bonus is a common incentive used by employers to motivate employees to meet or exceed their performance goals. By offering a financial reward for meeting certain targets, employees are encouraged to work harder and more efficiently. The Production Bonus can be a win-win situation for both the employer and the employee, as it helps to ensure that the company’s goals are met while also providing a financial benefit to the worker.
We believe that the labour law principles governing bonuses are the same whether it is a 13th cheque or a production bonus. It is thus important to note from the outset that the Labour Act leaves the issues of bonuses at the discretion of the employer. It is the employer that must sit down and set out the conditions under which a bonus is payable in an establishment. As discussed above, under section 25A of the Labour Act, the employer has a duty to consult with the employee representatives and may or may not accept the proposals presented by these representatives. There is also no strict guidance in terms of what is payable as a bonus and the quantum thereof. All these aspects are left to the discretion of the employer and an extent the employees through the consultation process.
Discretion of the employer in bonus issues
As indicated above, the statutory provisions in the Labour Act do not impose an onerous obligation on the employer to pay a bonus. The provisions are not strict and allow the employer to consult the worker’s committee in which case the employer can take into consideration what is proposed by this committee. In some cases, the employer may proceed to avoid implementing a bonus scheme.
The major disputes that have been before our courts in connection with bonuses and bonus payments have been a result of whether bonus payment is discretionary or not. In other words, the question is whether a bonus is a privilege or a right. The analysis by the court in Rodwell Jariremombe and Others v NSSA HH 402/2018 regarding whether a bonus can be discretionary or not is profound. The court found that whether a bonus is discretionary or not is a function of whether it is a contractual obligation or not. The case is discussed below.
We submit that if a bonus is found in a contract of employment, a company policy, or a CBA or any law there is a chance that it is an obligation. This is of course after one has assessed the wording of the provisions referring to the bonus.[14] On the other hand, if this bonus is not found anywhere in the instruments mentioned above and the employer is paying it, there is a high chance that it is discretionary and can be withdrawn by the employer at any time.
What follows is a review of several cases that provide insight into the several principles established by our labour law as far as bonus is concerned in Zimbabwe.
Minerals Marketing Corporation of Zimbabwe v Mvududu & 5 Others[15]
This case illustrates the important point that once an employer agrees to pay a bonus, this agreement cannot be set aside unilaterally. In this case, the employer agreed to a retrenchment package part of which it undertook to pay a bonus. After its audited financial statements were published it then turned out that the employer had made a loss. The employee insisted on the payment of the bonus since it was part of their agreement with the employer on retrenchment. The court pointed out that the employer must have qualified in the retrenchment agreement that a bonus was payable upon it making a profit. Failure to have such a meant that the employer didn’t set any conditions for the payment of the bonus and thus it could be paid to the employee whether a profit was made or not.
The importance of having bonus conditions known and documented is also illustrated in the facts found in the matter of Tendai Bonde v National Foods Limited SC 57/20. The employer and employee, in this case, agreed that the employee will not be entitled to a bonus if found guilty of a disciplinary offence during the period within which a bonus is payable. The employee was not paid the bonus based on a disciplinary offence. It would appear that the court was willing to accept the consequences of the terms of the bonus scheme and its adverse effect on the employee had the matter not been resolved with the consent of the parties.[16] It is thus important and indeed advisable for employers to come up with written conditions for bonus schemes and to ensure that these are communicated to the employees.[17]
Rodwell Jariremombe and Others v NSSA[18]
This case illustrates the complicated nature of bonus payments that are paid for a considerable period and that are later withdrawn unilaterally by the employer. In this case, NSSA withdrew an annual bonus citing that it was discretionary and could be taken away at any time. This prompted the employees to approach the High Court for a declaratory order compelling NSSA to pay the bonus.[19]
In refusing to compel NSSA to pay the bonus, the court argued that a bonus is a benefit that can either be contractual or discretionary. When a benefit is discretionary, the employer can take it away at any time.[20] The court further argued that once a benefit is discretionary the fact that it was honoured in prior years does not mean that it ceases to be discretionary.[21] This would be different from cases where a benefit is vested in terms of a contract of employment in which case, its discretionary nature does not exist. Such a contractual benefit must be paid by the employer unless the employee agrees otherwise.
The court then concluded that based on founding provisions of the NSSA bonuses are discretionary and as such the employer could not be compelled to pay its employees the discretionary bonus.
First Mutual Life Ltd. v Muzivi[22]
The First Mutual Life Ltd case involved the quantification of damages in lieu of reinstatement. The Supreme Court in this case, took note of the Labour Court’s judgement that an employee had to be paid a bonus for the time he had not been with the employer, that is during the period of unfair dismissal. The Labour Court had imposed this bonus after the quantification proceedings simply because the annual bonus had been “paid to other employees”. The Supreme Court highlighted the discretion of the employer regarding bonuses in such circumstances as follows:
“Payment of an annual bonus is generally discretionary on the part of the employer. It could not be said that the employee would have been awarded a bonus under all circumstances. A bonus would have depended on a clear record of performance. Having been suspended, it could not be said that the employee performed so well that he would have been entitled to a bonus.”
The Supreme Court’s remarks in the First Mutual Life Ltd case are important in that they speak to the philosophy in the Labour Act that a bonus is highly at the discretion of the employer. The remarks also seem to suggest that an employee must be available for work during the period of the bonus for them to be entitled to it. In cases wherein an employee is unfairly dismissed, the employee is not entitled to a bonus because they would not have been available for work.[23]
We have a different perspective on the court’s remarks in this particular case. When an employee is unfairly dismissed and reinstated by an order of the court, there is a legal obligation to place the employee into the position they would have been in but for the unfair dismissal.[24] Had the employee not been unfairly dismissed, he would have performed his duties and consequently would have been entitled to the bonus. Having been reinstated, we submit that an employee should also be entitled to the bonus that would have been paid to the other employees. This will place the employee into the position he or she would have occupied had it not been for the unfair dismissal occasioned by the employer. The employer’s discretion in issues of bonus must not be malicious or discriminatory.
T. M. Supermarkets (Private) Limited v Itayi Nkomo & 2 Others[25]
The dispute mainly concerned the implementation of a performance-based incentive bonus scheme. This had been implemented without the employer hearing what the employees had to say about the scheme. The employees complained that they were being underpaid since they were receiving a wage which was lower than that which was ordinarily paid to other employees in the same grade within the same company. The arbitrator who heard the matter concluded that by not consulting the employees on the bonus scheme, the employer had violated their right to be heard. The Labour Court also agreed with the arbitrator that an unfair labour practice had been committed in implementing the bonus scheme without prior consultation.
In the Supreme Court, the employer argued that there was nothing wrong with implementing the bonus scheme since the employees were being paid a minimum basic wage component in terms of the relevant Collective Bargaining Agreement. The court’s position was that there was nothing wrong with coming up with a bonus scheme for the benefit of the employees. It stated:
“A bonus is what can generally be termed a benefit. The implication that can be drawn is that the grant of a bonus per se is not illegal and an employer cannot generally be held to have committed an unfair labour practice by setting up a bonus scheme. The rationale to this principle is that every employee has the right to a performance-based incentive and if they work well, they will be paid well without any reference being made to their class, race, tribe, or any other factor on the basis upon which discrimination can competently be committed. Thus, the grant of a performance-based bonus is therefore not proscribed by law.”[26]
The remarks by the Supreme Court in this case are in tandem with the Labour Act in that a bonus is legal and fully recognised in terms of Zimbabwean law.[27] The court indicated that it is in very limited circumstances that it would interfere with the exercise of discretion by an employer unless the employer has acted on a wrong principle.[28] It recognised the law that was outlined in First Mutual Life Ltd. v Muzivi SC 9/2007. It recognised the need for an employer to implement a bonus scheme after informing the employees of the same.[29] On the basis that the employees had not been informed about the implementation of the bonus scheme, the Supreme Court accepted the Labour Court’s judgment that the whole scheme was illegal.[30] It also ruled that because the scheme was illegal, the Labour Court could not have lawfully proceeded to order back pay for the aggrieved employees based on the unlawful scheme.
The case thus illustrates the importance of communicating a bonus scheme to the employees in terms of Section 25A of the Labour Act. It also shows that a bonus scheme that is implemented without the involvement of the affected employees can be impugned by the court.
South African Legal Position
It is interesting to note that how the bonus is treated in South Africa is not far off from how Zimbabwean law views bonuses and their payment. The discretionary nature of the bonus in South Africa is also respected. We believe that the Labour law in South Africa, may expand and aid our understanding of bonuses and how they may be treated from a Zimbabwean labour law perspective.
Labour Relations Act of South Africa[31]
Like Zimbabwean law on the subject, there is no statutory obligation that is placed by South African Acts of Parliament compelling employers to pay a bonus and to have one in the first place. As will be gleaned below, South African statutory law requires that employees, through their representatives, be consulted before the issues of bonuses are considered and implemented. What follows is a review of the two important sections found in the Labour Relations Act of South Africa in connection with bonuses and payments thereof.
Section 84 of the Labour Relations Act of South Africa
Section 84 of the Labour Relations Act of South Africa provides for specific matters that an employer must consult with a workplace forum. A workplace forum is the South African equivalent of a Zimbabwean worker’s committee. Issues connected to the “criteria for merit increases or the payment of discretionary bonuses” should go through the consultation process before they are implemented.[32] As discussed above, this position is also found in the Zimbabwe set-up where an employer must consult a works council before implementing a bonus.[33] As already mentioned, in a matter of T. M. Supermarkets (Private) Limited v Itayi Nkomo & 2 Others SC 26/18 failure to consult a works council can result in a bonus scheme being deemed unlawful.
Section 87 of the Labour Relations Act of South Africa
The section simply states that on being elected to office, a workplace forum can arrange a meeting with the employer to review the “criteria for merit increases or the payment of discretionary bonuses.”[34] The section does not provide for any other obligation on the part of the employer.
South African Case LawApollo Tyres v Commission for Conciliation, Mediation and Arbitration and Others[35]
The case determined that payment of a bonus is deemed a benefit in terms of the Labour Relations Act of South Africa (LRA). The court determined that the term “benefit” under the LRA refers to any existing advantages or privileges that an employee is entitled to. Such benefits can be based on a contract, law, or policy/practice at the employer’s discretion. The court noted:
“In my view, the better approach would be to interpret the term benefit to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. In my judgment “benefit” in section 186 (2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion.”[36]
The case involved an early retirement policy which an employee could, at the discretion of the employer, opt for. The employer in this instance disallowed the employee from retiring early, for flimsy reasons and ended up treating the employee unfairly.[37] The employer also threatened the employee for demanding the early retirement package despite it being a benefit awarded to other employees. The court could not condone the exercise of the employer’s discretion in such a degrading and discriminatory manner. The observation of the court in this case applies with equal force to the issue of bonuses. The discretion to give or not to give an employee a bonus must not be arbitrary and motivated by inappropriate motives.
Public Servants Association obo Motsekoa v Department of Sports, Arts and Culture[38]
In this important case, the employees were not happy with how the employer determined and paid them bonuses.[39] The dispute concerned a bonus that had been awarded between 2010 and 2011. Before this period, bonus payments were made without any issues arising from the scheme.[40] For the 2010 and 2011 bonuses, the department implemented measures to ensure that the bonus paid stays within the set limit of 1.5% of the approved wage bill budget. The employee’s challenge was that a body that was constituted to ensure the implementation of these measures was not there in terms of the provisions governing the bonus. The question before the court was whether a review of the employer’s actions was an appropriate procedure to follow. The court accepted that how an employer chooses to exercise its discretion will always be challenged under the provisions that deal with unfair labour practices.[41] This case illustrates that dispute resolution mechanisms of conciliation and arbitration will always be available to an employee who is aggrieved by the exercise of the employer’s discretion whether this is bonus-related or not.
Aucamp v South African Revenue Services[42]
The court held that, even if a benefit is subject to certain conditions and the employer’s discretion, an employee can still seek to have instances where they were unfairly deprived of that benefit adjudicated in terms of unfair labour practice proceedings. Therefore, even if the benefit is not explicitly guaranteed in the employment contract, the employee can still claim it as an unfair labour practice if they can demonstrate that they were unjustly denied it.
The Bottom Line
We observe that the Zimbabwean and South African legal position regarding the payment of bonuses to employees is somewhat similar. The statutes for both countries do not strictly regulate the payment of bonuses. All is left to the discretion of the employer. Once the employer chooses to implement a bonus scheme, either as a 13th cheque or as a performance-related bonus scheme, there is a legal obligation to consult with the employee representatives in the employment setup. Failure to render such consultation can prove to be problematic for the entire bonus scheme.
We also note that whilst bonus payment is discretionary, the discretion must not be exercised arbitrarily or unfairly. The case of Apollo Tyres v Commission for Conciliation, Mediation and Arbitration and Others clearly illustrates that bonus issues, even when they are discretionary, can still be adjudicated upon in terms of the laws provided under the Labour Act. In Public Servants Association obo Motsekoa v Department of Sports, Arts and Culture the position was emphasized with the court positing that abuse of employer’s discretion in bonus issues can be adjudicated under the unfair labour practice jurisdiction that is reserved for ADR (conciliation and arbitration) mechanisms in terms of the labour laws of both countries.
An analysis of the laws of South Africa and Zimbabwe also points to the need for employers to come up with clear bonus schemes and policies that are adequately communicated to the employees. This can be through the works council and workers committee forums available in an employment setup. This communication enhances legal certainty and prevents instances of unnecessary disputes and wastage of legal costs.
[1] All rights reserved. No part of this article may be reproduced or utilised in any form or by any means, electronic or mechanical, including but not limited to photocopying, recording or by any information storage and retrieval system, without permission in writing from the author.
[2] Taurai Mrewa is an academic writer who shares his expertise in labour law. Through his articles, he aims to equip employers and employees with knowledge about labour laws, fostering a harmonious working environment. Please note that the views expressed in these articles are his own and not affiliated with any organization.
Disclaimer: The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available in this article and the website above (https://taumrewa.co.zw/blog) site is for general informational purposes only. Readers of this article and website should contact their attorney to obtain advice on any particular legal matter.
[3] Herald, “Bonus: Chinamasa Speaks Out” (20 April 2015), https://www.herald.co.zw/bonus-chinamasa-speaks-out/, <Accessed: 2 December 2023>.
[4] Voice of America, (12 January 2016) “Non-Payment of 2015 Bonuses Irks Zimbabwe State Workers”, https://www.voazimbabwe.com/a/zimbabwe-bonus-payments/3141951.html, <Accessed: 2 December 2023>.
[5] The Herald (1 January 2016), Civil Servants meet the RBZ Chief, call off planned strike, https://www.herald.co.zw/civil-servants-meet-rbz-chief-call-off-planned-strike-bonus-still-coming-constant-pay-dates-promised/<Accessed: 2 December 2023>.
[6] The Herald, (20 April 2015) “Bonus: Chinamasa Speaks Out”, https://www.herald.co.zw/bonus-chinamasa-speaks-out/, <Accessed: 2 December 2023>.
[7] The Sunday Mail,(17 September 2017) “No bonuses for private sector”, https://www.sundaymail.co.zw/no-bonuses-for-private-sector, <Accessed 2 December 2023>.
[8] The Herald, (6 September 2017) “Workers drag NSSA to court over bonus”, https://www.herald.co.zw/workers-drag-nssa-to-court-over-bonus/, <Accessed 2 December 2023>.
[9] Section 12(2)(h) of the Labour Act provides: “(2) An employer shall, upon engagement of an employee, inform the employee in writing of the following particulars— (h) particulars of any bonus or incentive production scheme”. (Own Emphasis)
[10] Section 12A(5)(c) of the Labour Act provides: “(5) All remuneration shall be accompanied by a written statement showing— the component of the remuneration representing any bonus or allowance.” (Own Emphasis)
[11] Section 25A(5)(e) of the Labour Act provides: “Without prejudice to the provisions of any collective bargaining agreement that may be applicable to the establishment concerned, a works council shall be entitled to be consulted by the employer about proposals relating to any of the following matters— the criterion for merit increases or payment of discretionary bonuses”
[12] Section 25A(6) of the Labour Act.
[13] T. M. Supermarkets (Private) Limited v Itayi Nkomo & 2 Others SC 26/18 at paragraph 8 the court remarked that: “It is my view that the finding by the court a quo cannot be assailed because employees have a right to be informed about decisions pertaining to their employment conditions of service even if the decisions are made in the exercise of an employer’s discretion. The appellant as the employer had a duty to notify all employees about its decision to start a performance-based bonus scheme before implementing it.”
[14] See Rodwell Jariremombe and Others v NSSA HH 402/2018.
[15] Minerals Marketing Corporation of Zimbabwe v Mvududu & 5 Others LC/H/51/2014.
[16] In Tendai Bonde v National Foods Limited SC 57/20 the court remarked: “The court found that for the period January – June 2016 during which the incentive bonus was payable, the applicant had an existing misconduct case and that he was therefore ineligible to get the incentive bonus in terms of the conditions of the scheme. The court also found that the incentive scheme was not an entitlement and that it was non-contractual. It therefore found that, as a court, it could not, in these circumstances, impose an obligation on the employer to pay the incentive bonus in all cases as that would be tantamount to rewriting the contract of employment for the parties.”
[17] See T. M. Supermarkets (Private) Limited v Itayi Nkomo & 2 Others SC 26/18.
[18] Rodwell Jariremombe and Others v NSSA HH 402/2018.
[19] It’s important to note that in terms of Nhari vs Mugabe and others SC161/20 the High Court can no longer exercise its jurisdiction over Labour Matters.
[20] Rodwell Jariremombe and Others v NSSA HH 402/2018 at page 29.
[21] Rodwell Jariremombe and Others v NSSA HH 402/2018 at page 30.
[22] First Mutual Life Ltd. v Muzivi SC 9/2007
[23] See also Clan Transport Company (Pvt) Ltd. v Clan Transport Workers Committee SC 1 /02 wherein the court noted: “The respondents were not entitled to an award under this head since bonus is usually performance-related unless evidence led reveals the contrary and no such evidence was led.”
[24] See CIMAS Medical Aid Society v Nyandoro SC 6/16 at page 7 wherein the court remarked: “Reinstatement is a remedy which is used to place an unfairly dismissed employee into a position he would have been had the unfair dismissal not been committed.”
[25] T. M. Supermarkets (Private) Limited v Itayi Nkomo & 2 Others SC 26/18.
[26] T. M. Supermarkets (Private) Limited v Itayi Nkomo & 2 Others SC 26/18 at page 6.
[27] See sections 12, 12A and 25A of the Labour Act (Chapter 28:01).
[28] T. M. Supermarkets (Private) Limited v Itayi Nkomo & 2 Others SC 26/18 at page 7.
[29] T. M. Supermarkets (Private) Limited v Itayi Nkomo & 2 Others SC 26/18 at page 8.
[30] T. M. Supermarkets (Private) Limited v Itayi Nkomo & 2 Others SC 26/18 at page 8.
[31] Act Number 66 of 1995.
[32] Section 84(1)(h) of the Labour Relations Act of South Africa provides: “Unless the matters for consultation are regulated by a collective agreement with the representative trade union, a workplace forum is entitled to be consulted by the employer about proposals relating to any of the following matters- (h) criteria for merit increases or the payment of discretionary bonuses.”
[33] Section 25A(5)(e) of the Labour Act (Chapter 28.01)
[34] Section 87(1)(a) of the Labour Relations Act of South Africa.
[35] Apollo Tyres v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 1120 (LAC).
[36] Apollo Tyres v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 1120 (LAC) at paragraph 50.
[37] The court in this case observed that: “The appellant acted in a deplorable manner towards Hoosen. When she approached Van der Walt and asked him whether she could get a legal opinion on the issue of managerial discretion he threatened her, no he in fact intimidated her. When the referral documents were served on the appellant, she was told to leave with immediate effect. So despicable was its conduct that a farewell party that was arranged for her was cancelled. That is not the way to treat an employee who has, by all accounts, given more than 24 years of dedicated and excellent service. The appellant ought to be mulcted in costs.”
[38] Public Servants Association obo Motsekoa v Department of Sports, Arts and Culture (2015) 36 ILJ 808 (BCA).
[39] Public Servants Association obo Motsekoa v Department of Sports, Arts and Culture (2015) 36 ILJ 808 (BCA) at paragraph 1.
[40] Public Servants Association obo Motsekoa v Department of Sports, Arts and Culture (2015) 36 ILJ 808 (BCA) at paragraph 13.
[41] Public Servants Association obo Motsekoa v Department of Sports, Arts and Culture (2015) 36 ILJ 808 (BCA) at paragraph 50.
[42] Aucamp v South African Revenue Services [2014] 2 BLLR 152 (LC).